Table of Contents

CHAPTER VI - OF THE PROOF OF OBLIGATIONS AND OF THAT OF PAYMENT

Art. 215. He who claims the execution of an obligation must prove it.
On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of his obligation.

Art. 216. The rule which concerns the literal proof, the testimonial proof, presumption, the confession of the party, and the oath, are explained in the following sections.

 

SECTION I - OF THE LITERAL PROOF

 

§ 1 - OF THE AUTHENTIC TITLE

Art. 217. The authentic act is that which has been received by public officers having power to record public acts in the place where the act has been drawn up, and with the requisite solemnities.

Art. 218. An act which is not authentic, through the incompetence or the incapacity of the officer, or through a defect of form, avails as a private writing, if it be signed by the parties.

Art. 219. The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.

Art. 220. An act whether authentic or under private signature is proof between the parties, even of what is there expressed only in enunciative terms, provided the enunciation have a direct reference to the disposition.
Enunciations foreign from the dispositions, can serve only as a commencement of proof.

Art. 221. Counter letters can have effect only between the contracting parties: they have no effect against others.

 

§ 2 - OF THE ACTS UNDER PRIVATE SIGNATURE

Art. 222. All acts may be executed under private signature, except such as possitive laws have ordained to be passed in presence of a notary.

Art. 223. It is not necessary that those acts be written by the contracting parties, provided they be signed by them.

Art. 224. An act under private signature, acknowledged by the party against whom it is adduced, or legally held to be acknowledged, has, between those who have subscribed it, and their heirs and assigns, the same credit as an authentic act.

Art. 225. The person against whom an act under private signature is produced, is obliged formally to avow or disavow his signature.
Their heirs or assigns may simply declare that they know not the hand writing or the signature of the person they represent.

Art. 226. In case the party disavows his signature, and in case the heirs or assigns declare that they do no know the signature of the person whom they represent, proof of it may be given under oath or affirmation, by at least one credible witness, declaring positively that he knows the signature as having seen the obligation signed by the person from whom or from whose heirs the payment or execution of it is demanded, and if there be no such deposition, the signature of the person must be ascertained by two persons having skill to judge of hand writing, appointed by the judge before whom the cause is pending, which two persons shall report on oath whether the signature appear to them to be that of the person whose it is alledged to be, on their having compared it with papers acknowledged to have been signed by him.

Art. 227. Acts under private signature containing synallagmatic agreements, are valid only in as much as they are made in as many originals as there are parties having a distinct interest.
One original is sufficient for all the persons having one and the same interest.
Every original must contain the mention of the number of originals that have been made of it.
Nevertheless, the defect of the mention that the original has been made double or treble, &c cannot be pleaded by him who has executed on his part the agreement expressed in the act.

Art. 228. Acts under private signature expressing a sale or exchange of immoveables or slaves must be acknowledged and registered in the office of a notary public, six days from their date, if they be passed in the city of New-Orleans or within its liberties; and within ten days from its date, if they be passed without the city and its liberties, in any part of the territory.
When acts under private signature expressing a sale or exchange of immoveable property or slaves have been registered within the above mentioned time, they shall have effect against third persons from the day of their date, otherwise they shall have effect only from the time of their being registered; but the want or delay of registering cannot be pleaded by any one of the contracting parties, their heirs or assigns.

Art. 229. Acts under private signature expressing a sale or exchange or moveable things, have effect against third persons, and can prejudice them only from the day of their being registered in the office of a notary public, unless it be proved that the sale or exchange was accompanied with the actual delivery of the object sold or exchanged, or with some of the circumstances that are equivalent to the actual delivery, according to law or usage.
There is an exception to this rule in favor of the sales of produce or merchandise, if the truth of the date at which they appear to have been passed, be attested on oath or affirmation by at least one credible and disinterested witness.

Art. 230. Merchants' books do not prove against persons who are not in trade, the sale and delivery of the articles there entered.

Art. 231. Merchants' books are good evidence against the merchants themselves, but whoever wishes to avail himself to that evidence, must admit the books to prove what they contain contrary to his pretensions.

Art. 232. Domestic books and papers are no proof in favor of him who has written them.
They are proofs against him, 1st, in all cases where they formally declare a payment received; 2dly, when they contain an express mention that the minute was made to supply the want of a title in favor of him for whose advantage they declare that an obligation was made.

Art. 233. What is written by the creditor at the foot, in the margin, or on the back of a title that has always remained in his possession, though it be neither signed nor dated by him, is good evidence when it tends to establish the discharge of the debtor.
In like manner what is written by the creditor on the back, in the margin, or at the foot of the duplicate of a title, or of a receipt, is evidence, provided that duplicate be in the hands of the debtor.




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